Professor and Environmental Law Pioneer Joseph Sax Dies at 78

Berkeley Law Professor Emeritus Joseph Sax, widely known as the “father of environmental law,” died Sunday, March 9, in San Francisco of complications from a series of strokes. He was 78.

Sax began his environmental legal work in the mid-1960s before environmental protection was even recognized as a legal field, and authored the groundbreaking Michigan Environment Protection Act. Popularly known as the “Sax Act,” it was the world’s first modern environmental law based on the public trust doctrine, which identifies natural resources as a public trust that demands protection.

The Sax Act stated that “any person, partnership, corporation, association, organization, or other legal entity, may maintain an action in the circuit court for the protection of the air, water, and other natural resources and the public trust therein from pollution, impairment, or destruction.” Now recognized as a catalyst of the environmental movement, the Sax Act ensured ordinary citizens’ standing in environmental litigation. It later became the model for similar statutes in more than a dozen other states and the basis for international environmental law.

“In his lifetime, Joe had an immeasurable influence on the field of environmental law, his colleagues, and generations of students,” said Berkeley Law Acting Dean Gillian Lester. “He was a beloved and deeply respected member of our faculty for 24 years.”

Sax was born in Chicago on Feb. 3, 1936. After graduating from Harvard in 1957 and earning his law degree from the University of Chicago in 1959, Sax worked for the U.S. Department of Justice and in private practice in Washington, D.C. He began teaching law at the University of Colorado in 1962 before moving in 1966 to the University of Michigan.

Sax joined Berkeley Law’s faculty in 1986 as its James H. House and Hiram H. Hurd Professor of Environmental Regulation. From 1994 to 1996, he served in President Clinton’s administration as Counselor to the Secretary of the Interior, and as Deputy Assistant Secretary for Policy at the Department of the Interior. During this time, when the Endangered Species Act came under political fire, Sax helped Interior Secretary Bruce Babbitt and Interior Solicitor John Leshy find needed flexibility in the landmark law.

Over the course of his prolific career, Sax wrote extensively about environmental law issues such as conservation, water law, animal rights, and public land use. He authored five books, including the classics Mountains Without Handrails (1980) and Defending the Environment (1971).

Some of Sax’s numerous honors include the U.S. Environmental Protection Agency’s Environmental Quality Award, the Audubon Society’s Conservationist of the Year Award, The Sierra Club’s William O. Douglas Legal Achievement Award, and the Environmental Law Institute Award.

Sax was a visiting professor at Stanford University, the University of Utah, and the University of Paris. He was also a fellow at the Center for Advanced Study in the Behavioral Sciences and at the American Academy of Arts and Sciences, and served as a consultant or board member of 19 environmental public service organizations.

After winning the prestigious international Blue Planet Prize in 2007, which has been likened to a Nobel Prize for environmental science, Sax reflected on his life’s work. “Environmental conservation is among the most urgent global issues,” he said, adding that it was “particularly gratifying” to help shape “the role that the rule of law plays in implementation of scientific achievement in the governance of our societies, and in assuring justice to those who have suffered environmental harm.”

Sax’s beloved wife of 55 years, Eleanor Sax, died of a heart attack on December 24, 2013. He is survived by his three daughters, Katherine Dennett, Valerie Sax, and Amber Rosen, and four granddaughters.

A memorial service for Sax will be held on Sunday, March 23rd, at 3 pm with a reception following at Temple Emanu-El in San Francisco. More information about Sax’s life is available in the New York Times and Los Angeles Times.

Professor Holly Doremus ’91, the director of Berkeley Law’s Environmental Law program and co-director of its Center for Law, Energy & the Environment, posted a tribute to Sax on the law school’s environmental blog Legal Planet on behalf of its faculty bloggers. It’s a moving homage to his life’s work with excerpts reposted here:

Joe was our hero, our teacher, our mentor, our colleague, our friend. We will miss his intellectual vigor and creativity, and the gentle way he approached even the most potentially divisive issues. We will do our best to carry on his work with the same commitment, integrity, and humility he brought to it…

It would be impossible to overstate Joe’s influence on environmental and natural resources law over the last half century. In the 1960s, he and a handful of others literally invented the field. Joe wrote a series of seminal articles and books, breaking new and important intellectual ground on topics as diverse as regulatory takings, the public trust doctrine, management of the national parks and other public lands, citizen enforcement of environmental law, western water law, and cultural property protection.

Joe’s scholarship was never timid. He cared deeply about the issues he took on. He believed that the public had important interests in shared resources and even in some resources conventionally viewed as entirely private. He saw the courts as the institution often best situated to protect that public interest. He sought to persuade judges to take on that responsibility and to convince the political branches to assign the courts that role. He did not shirk from taking controversial positions on difficult issues.

But Joe’s scholarship was also never overbearing or overwrought. He was a scholar’s scholar: he read voraciously and broadly, he thought synthetically, he reasoned carefully, and he always treated opposing arguments with respect. Among his many classic works are: “Takings and the Police Power,” 74 Yale Law Journal 36 (1964); “The Public Trust in Natural Resource Law: Effective Judicial Intervention,” 68 Michigan Law Review 771 (1970); “Takings, Private Property and Public Rights,” 81 Yale Law Journal 149 (1971); “Glacier National Park and Its Neighbors: A Study of Federal Interagency Relations,” 14 Ecology Law Quarterly 207 (1987) (with Robert Keiter); “Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council,” 45 Stanford Law Review 1433 (1993).

Recently he had been writing about the little-known property doctrines of accretion and avulsion, which have gained new importance with climate change; about application of takings doctrine to water rights; and about the concept of a “fair share” of resources in property law.

As a teacher, Joe influenced countless students. Some went on to work in academia, others to government, and many to private law firms. Anyone who had the good fortune to experience one of his classes (as I did, many years ago), came away not only with a much deeper understanding of the subject matter but with a sense of the importance of approaching tough issues honestly and directly, and a great model for doing so. As Chris Carr, a 1994 Law Building grad now at Morrison & Foerster in San Francisco, wrote recently in support of Joe’s nomination for a Lifetime Achievement award from the California State Bar, Joe’s teaching ‘conveyed the unmistakable message that the issues needed to be engaged deeply, with rigor, and with an appreciation for the perspectives of others.’

One of his greatest teaching contributions was the development of a water law casebook that, true to Joe’s form, went well beyond judicial opinions to include a variety of materials that helped put the issues in context. It’s routine now for environmental and natural resources casebooks to range well beyond the law, thanks in large part to Joe’s vision.

Joe was never content to confine his work to the ivory tower. Throughout his career he engaged directly and effectively with the issues he cared about in judicial, legislative, and executive fora. He authored amicus briefs, consulted on litigation, served as an expert witness and as a consultant. He worked with countless environmental public interest groups and state and federal agencies….

In short, Joe was the consummate academic and so much more. He will be sorely missed and dearly remembered. His influence will continue for many decades to come, through his writings and through the work of those he has taught. At Berkeley Law, we will strive to live up to his legacy.